Consummation of marriage
AndyS
Over on soc.retirement , one of the posters made the comment that
a marriage is not legal until it is "consummated". Consummation
in this context being sexual intercourse.....
I got curious and looked it up in the Texas Statutes (on line) and
did
not find that to be a basis for dissolving a marriage. Yet the
original
poster insisted that it was true and based on "common law"...
The Statutes lists several possibilities, including impotence IF
if is not disclosed prior and the petitioner wants the marriage
dissolved,
and some other stuff, but simply failure to "consummate" by itself
is not shown as a necessary thing to make a marriage legal...
So, I put it to you professionals......
Does failure have sexual intercourse, IN ITSELF, provide a basis
for dissolving a marriage ?
Andy in Eureka, Texas
Dick Adams
>Andy writes:
>
> Over on soc.retirement , one of the posters made the comment that
>a marriage is not legal until it is "consummated". Consummation
>in this context being sexual intercourse.....
>
> I got curious and looked it up in the Texas Statutes (on line) and
>did not find that to be a basis for dissolving a marriage. Yet the
>original poster insisted that it was true and based on "common law"...
>....
Check under grounds for Annulment.
Cy Pres
wrote:
> Over on soc.retirement , one of the posters made the comment that
>a marriage is not legal until it is "consummated". Consummation
>in this context being sexual intercourse.....
While this may be true in some jurisdictions outside the United
States, I do not believe it is the case anywhere now.
> I got curious and looked it up in the Texas Statutes (on line) and
>did
>not find that to be a basis for dissolving a marriage. Yet the
>original
>poster insisted that it was true and based on "common law"...
To the extent common law marriage even exists any more, statutes
override it wherever the statutory law and the common law conflict.
> Does failure have sexual intercourse, IN ITSELF, provide a basis
>for dissolving a marriage ?
It may provide grounds for dissolving a marriage, but a marriage is
not void for not having been consummated. There are many people who
are married despite the fact that one or both of them are incapable of
sexual intercourse. Further, there are probably even some who cement
a platonic bond with marriage. The state has no business looking in
the bedroom window to verify.
If two people meet the statutory and/or constitutional qualifications
for getting married, and then take the legal steps necessary to create
a marriage, nobody else may interfere.
Note: there may be forms of *religious* marriage which are not valid
within a given religion unless there has been consummation, and which
may be nullified for failure to do so. Marriages in the Roman
Catholic Church are an example.
Daniel R.Reitman
wrote:
>Andy writes:
It appears from quick research that quite a few states have held
refusal to comsummate may be grounds for annulment under a fraud
theory if the intent not to consummate is concealed at the time of the
marriage. E.g., Rathburn v. Rathburn, 292 P.2d 274 (Cal. App. 1956);
Pretlow v. Pretlow, 14 S.E.2d 381 (Va. 1941). This is slightly
different from the original proposition, that consummaton is required
for validity. Parties to a marriage could very easily agree in
advance not to consummate, which would not trigger a fraud argument.
Daniel Reitman
FOR EDUCATIONAL PURPOSES ONLY. NO ATTORNEY-CLIENT RELATIONSHIP
INTENDED.
Steve Bartman
>> Does failure have sexual intercourse, IN ITSELF, provide a basis
>>for dissolving a marriage ?
>
>It may provide grounds for dissolving a marriage, but a marriage is
>not void for not having been consummated.
My state (MN) is a statute-marriage state which recognizes, but does
not allow, common law marriage.
The relevant portion of our marriage statutes state:
"518.02 VOIDABLE MARRIAGES
A marriage shall be declared a nullity under the following
circumstances:
(a) ...
(b) A party lacks the physical capacity to consummate the marriage by
sexual intercourse and the other party at the time the marriage was
solemnized did not know of the incapacity;"
This seems logical given the entire tenor of the statutes as being a
social contract and a "meeting of the minds" by the parties at the
time of solemnization. If the incapable party discloses and the other
party proceeds with the marriage anyway, the marriage is not voidable.
It is only willful deception, or simple failure to inform, that makes
annulment possible. At that point it's up to the capable party to act
by petitioning for annulment.
I'd guess that many statute-marriage states have similar provisions.
Steve
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>Note: there may be forms of *religious* marriage which are not valid
>within a given religion unless there has been consummation, and which
>may be nullified for failure to do so. Marriages in the Roman
>Catholic Church are an example.
I believe there have been a number of civil-and-religious marriages
where the civil marriage was terminated by divorce, and the religious
marriage by annulment.
Seth
Stuart A. Bronstein
> Andy writes:
>
> Over on soc.retirement , one of the posters made the comment
> that a marriage is not legal until it is "consummated".
> Consummation in this context being sexual intercourse.....
Not quite. In some states lack of consummation may be grounds for
annulment or divorce. One of the spouses must affirmatively take
steps to terminate the marriage.
But a marriage is not automatically void due to lack of consummation,
which is what your statement implies.
Cy Pres
wrote:
>On Fri, 06 Nov 2009 15:01:50 -0500, Cy Pres <c.p...@yahoo.com> wrote:
>>> Does failure have sexual intercourse, IN ITSELF, provide a basis
>>>for dissolving a marriage ?
>>It may provide grounds for dissolving a marriage, but a marriage is
>>not void for not having been consummated.
>My state (MN) is a statute-marriage state which recognizes, but does
>not allow, common law marriage.
>The relevant portion of our marriage statutes state:
>"518.02 VOIDABLE MARRIAGES
>A marriage shall be declared a nullity under the following
>circumstances:
>(a) ...
>(b) A party lacks the physical capacity to consummate the marriage by
>sexual intercourse and the other party at the time the marriage was
>solemnized did not know of the incapacity;"
This requires an additional element other than lack of consummation.
The inability to consummate must have also been unknown to the other
party. As you point out, this adds principles of contract law, since
someone concealing such an inability (or actively lying about it) is
effectively engaging in fraudulent inducement. As with other
contracts, fraud in the inducement renders the contract void ab
initio; although under this statute, it is merely voidable. Presumably
the other party could waive the issue.
I note that the statute does not actually *require* fraud, though. It
appears only to require, in addition to lack of consummation due to
physical inability, a mere lack of knowledge. *Neither* party need
have known of the inability. I suppose such a situation could arise
completely inadvertently.
In any case, it is not the lack of consummation, standing in
isolation, that voids the marriage or, in the case of this statute,
renders it voidable.
David Chesler
> � Over on soc.retirement , one of the posters made the comment that
> a marriage is not legal until it is �"consummated". �Consummation
> in this context being sexual intercourse.....
'Tis a consummation devoutly to be wished.
> � �I got curious and looked it up in the Texas Statutes (on line) and
> did not find that to be a basis for dissolving a marriage. �
...
> � �Does failure have sexual intercourse, � IN ITSELF, provide a basis
> for dissolving a marriage ?
And there were many replies that it could form the basis (most likely
if the lack of consummation was due to inability or unwillingness of
one partner.)
That is not the same question as the whether a marriage is legal
before it is consummated. Suppose a soldier marries just before
shipping out (by married I mean they applied for a marriage license
under the statutes of the appropriate jurisdiction and solemnized it
appropriately.) The couple does not have the opportunity to consummate
the marriage before the soldier ships out. (If this jurisdiction
doesn't recognize common-law marriage, it doesn't matter if they
consummated it before hand.) Are they married during the time they
are apart, for any purpose you can imagine? (Spousal benefits, bigamy,
etc.)
Or suppose the couple gets married, and is never alone together after
the solemnization (for some religious traditions alone together is
enough to create a presumption of consummaton) and on the way to their
honeymoon one member of the couple dies. There is no question the
marriage was properly solemnized, and there is no question that the
marriage was not and never will be consummated. Is the survivor a
widow?
Or more happily, the marriage takes place on New Year's Eve, but the
reception lasts until past midnight, and they go off together at 1am
-- do they file their taxes a married for the year just ended?
--
- David Chesler <che...@post.harvard.edu>
New York's home, but it ain't mine no more
Steve Bartman
>This requires an additional element other than lack of consummation.
>The inability to consummate must have also been unknown to the other
>party. As you point out, this adds principles of contract law, since
>someone concealing such an inability (or actively lying about it) is
>effectively engaging in fraudulent inducement. As with other
>contracts, fraud in the inducement renders the contract void ab
>initio; although under this statute, it is merely voidable. Presumably
>the other party could waive the issue.
True, although I think the use of "shall" in the statute, while
directed at the court, unfortunately could confuse the non-lawyer
reader who is the "capable party" in a non-sexual marriage into
thinking that they have no choice about the matter of annulment.
..
>I note that the statute does not actually *require* fraud, though.
I was surprised by that.
It
>appears only to require, in addition to lack of consummation due to
>physical inability, a mere lack of knowledge. *Neither* party need
>have known of the inability. I suppose such a situation could arise
>completely inadvertently.
And I had not considered this, probably since complete sexual
innocence at the time of marriage is so vanishingly rare these days.
Good catch.
>In any case, it is not the lack of consummation, standing in
>isolation, that voids the marriage or, in the case of this statute,
>renders it voidable.
I had disagreed with the OP and posted to show that the old concept of
consummation is no more. But it was certainly a central concern in
past centuries, when marriage was primarily for creating heirs and
bastards were automatically disinherited.
It's an interesting historical artifact that MN's marriage statutes
specifically name inability to consummate and lack of communication of
same as grounds for annulment. I can lie to my betrothed about my
religious views, my lack of employment, the number of my past spouses,
or the fact that her mother-in-law is already living in the house to
which we will return after the honeymoon--no problem. Lie about
sex--BIG problem. :)
Steve
Gordon Burditt
>before it is consummated.
I believe the marriage is voidable, that is, can be annulled if one
party objects, but it doesn't matter unless one party objects.
There's a certain period during which the marriage can be retroactively
cancelled. This can bring up issues of benefits paid which then
have to be taken back. Most people getting married want to consummate
the marriage right away, not pull legal trickery.
>Suppose a soldier marries just before
>shipping out (by married I mean they applied for a marriage license
>under the statutes of the appropriate jurisdiction and solemnized it
>appropriately.) The couple does not have the opportunity to consummate
>the marriage before the soldier ships out. (If this jurisdiction
>doesn't recognize common-law marriage, it doesn't matter if they
>consummated it before hand.) Are they married during the time they
>are apart, for any purpose you can imagine? (Spousal benefits, bigamy,
>etc.)
I'd say YES, although it can be retroactively changed to NO if either
party objects.
Rights of inheritance may also be important here if the soldier
dies before coming back (and he may not have had a chance to re-write
his will, or if he did, the will may refer to "his wife").
Have there been any court cases on when, exactly, down to the second,
someone becomes married? If the state says you are married when
solemnization is done, it's possible to imagine a case where someone
says (during the ceremony): I d...<thud><dies>, due to a heart
attack or a sniper in the audience or the church roof falling in.
HER children from her first marriage and HIS children from his first
marriage then start fighting over the inheritance. Assume the
videographer recorded the whole thing frame by frame.
If you have to consummate the marriage for it to become valid, that
brings up worse problems. Someone can die while attempting the
act, and chances are the videographer wasn't filming it (or is it
now important that you *DO* have the videographer film it, and give
each party a copy, in case someone challenges the marriage?), so
no one can determine exactly how far they got. What, *exactly*,
is required to complete it? How much detail does the videographer
have to get on the film for proof of consummation?
Are there any qualifiers to "unable to consummate the marriage"?
"Unable to consummate the marriage without pharmaceutical assistance"
is probably no big deal, as the spouse doesn't have to know. But
how about "Unable to consummate the marriage without a complicated
harness and 5 assistants being present and helping with the act"?
(Consider a man paralyzed from the neck down, whose body can be
manipulated into position, and he can be given drugs to make his
body respond appropriately).
AMM
> On Nov 5, 8:00 pm, AndyS <andysha...@juno.com> wrote:
>
> > Does failure have sexual intercourse, IN ITSELF, provide a basis
> > for dissolving a marriage ?
>
> And there were many replies that it could form the basis (most likely
> if the lack of consummation was due to inability or unwillingness of
> one partner.)
>
> That is not the same question as the whether a marriage is legal
> before it is consummated. Suppose a soldier marries just before
> shipping out ...The couple does not have the opportunity to consummate
> the marriage before the soldier ships out. ... Are they married during the time they
> are apart, for any purpose you can imagine? (Spousal benefits, bigamy,
> etc.)
IANAL, but I'm not going to let that stop me.
I think there are two very different issues here:
1. If one of the two parties who supposedly got
married wants to claim that the marriage
never really happened (rather than divorce),
what grounds can they use?
2. If a third party wants to claim that a couple is not
married, or were not married when they said they
were, to what extent can they get any legal support?
>From everything I'm hearing, non-consumation
applies to #1, but I can't see a judge allowing it
to apply to #2. Can you imagine the kind of
court actions that result if you did? Insurance
companies filing motions for the couple to produce
a bloody sheet (which would have to be sent out
for DNA testing, of course!) or a videotape of them
"in the act" before they'll pay benefits? People
testifying that they listened at the couple's door
on their wedding night and didn't hear them "doing it."
I think for case 2, a state certificate showing
that and when the marriage was "solemnized"
would suffice. (In NY, at least, this is what
you (can?) get after you get your marriage license
signed and sent in to the State.)
Even then, the third party would need to
have a legitimate interest in knowing
whether the parties were "really" married.
Not approving of your neighbors' "living in
sin" would not count, for instance.
On the other hand, already being married
to one of the couple probably _would_ count.
I also recall in my reading of NYS law
that there are a number of clauses whose
apparent purpose is to make sure that
a couple who took all reasonable steps
to get married won't find their marriage
being invalidated years later due to some
technicality.
Mike
> On Sat, 07 Nov 2009 15:09:20 -0600, Steve Bartman <sbar...@visi.com>
> wrote:
>> "518.02 VOIDABLE MARRIAGES
>
>> A marriage shall be declared a nullity under the following
>> circumstances:
>> (a) ...
>> (b) A party lacks the physical capacity to consummate the marriage by
>> sexual intercourse and the other party at the time the marriage was
>> solemnized did not know of the incapacity;"
>
<snip>
> I note that the statute does not actually *require* fraud, though. It
> appears only to require, in addition to lack of consummation due to
> physical inability, a mere lack of knowledge. *Neither* party need
> have known of the inability. I suppose such a situation could arise
> completely inadvertently.
I'm having a difficult time trying to imagine how one party could be the
one with the inability and not know it (or at least how it could be the
groom with the inability.) But what about the very rare case of they get
married and then the groom trips and falls onto the knife being used to
cut the cake and......well, it hurts to even think about it but I'm sure
folks get the idea. I.e. both parties were "willing and able" at the
time of the contract being made but then one is unable to AFTER the fact
(and this can be generalized into any contract where circumstances
change after signing the contract but before full-filling it.) Doesn't
contract law usually allow for "anullment" (or rescinding) of the
contract in cases like that? But yeah, I realize marriage is a special
case of contract law.
Seth
AMM <a_m...@yahoo.com> wrote:
>2. If a third party wants to claim that a couple is not
> married, or were not married when they said they
> were, to what extent can they get any legal support?
>Even then, the third party would need to
>have a legitimate interest in knowing
>whether the parties were "really" married.
>Not approving of your neighbors' "living in
>sin" would not count, for instance.
>On the other hand, already being married
>to one of the couple probably _would_ count.
Inheritance would also count, and could be the most likely case.
(Couple gets married, automobile accident while driving away from the
ceremony, one dies immediately the other a few days later. Do the
children of the second inherit everything?)
Seth
Daniel R.Reitman
Burditt) wrote:
>. . . .
>Rights of inheritance may also be important here if the soldier
>dies before coming back (and he may not have had a chance to re-write
>his will, or if he did, the will may refer to "his wife").
>
>Have there been any court cases on when, exactly, down to the second,
>someone becomes married? If the state says you are married when
>solemnization is done, it's possible to imagine a case where someone
>says (during the ceremony): I d...<thud><dies>, due to a heart
>attack or a sniper in the audience or the church roof falling in.
>HER children from her first marriage and HIS children from his first
>marriage then start fighting over the inheritance. Assume the
>videographer recorded the whole thing frame by frame.
>. . . .
In fact, there was a trial court in Pennsylvania that had to rule on
this. During the ceremony, the parties exchanged vows, the minister
began to pray, and the groom began to lose consciousness. The
minister immediately pronounced the couple married, and the groom died
within seconds.
The bride then initiated (intestate) probate, and the groom's family
objected. The court ruled that because marriage in Pennsylvania was a
contract, it was completed when the parties exchanged vows.
Unfortunately, the case wasn't appealed, so its listing in the
Pennsylvania District & County reports probably doesn't have much
bearing elsewhere. It was, however, identified in my Trusts & Estates
casebook.
AMM
> In article <33e7e3eb-a843-4f6b-ae9c-604df9c96...@m1g2000vbi.googlegroups.com>,
Well, IASNAL (I Am Still Not A Lawyer), but I would guess:
1. I agree that the third parties in your hypo _do_
have "standing" to get a legal decision as to
whether the couple was married.
2. Courts would consider the couple married.
While in your hypo, the couple is unlikely (but
only _unlikely_) to have consumated the marriage,
even considering the question opens a can of
X-rated worms. What if there were an hour or so
unaccounted for after they left the ceremony and
before the accident? What if the groom had a heart
attack during "the act"? Etc.
I would guess that courts would prefer say that
solemnization is enough, if only for the sake of
the dignity of the court.
It also seems to (non-lawyer) me that the fact
that you can annull a marriage upon proof
that it will _never_ be consumated doesn't mean
that the marriage doesn't exist _until_ it is first
consumated.
If I order a magazine subscription, a contract
exists from the time they get the check,
even if it's a month or two until I see the first
issue and even though they could, in principle,
decide in the meantime not to publish the magazine
any more and return everybodys' money.
Seth
Mike <prab...@shamrocksgf.com> wrote:
>I'm having a difficult time trying to imagine how one party could be the
>one with the inability and not know it (or at least how it could be the
>groom with the inability.)
A widower was 60 years old when his wife died. He was very religious,
and wouldn't even consider sex outside of marriage. 10 years later,
he remarries and then finds himself unable to perform.
Seth
mm
<drei...@spiritone.com> wrote:
> The
>minister immediately pronounced the couple married, and the groom died
>within seconds.
>
>The bride then initiated (intestate) probate, and the groom's family
>objected. The court ruled that because marriage in Pennsylvania was a
>contract, it was completed when the parties exchanged vows.
It makes sense. A promise for a promise is a contract.
Though the state gives ministers the power to fill out the form saying
a man and woman have been married and the county clerk accepts his
word, and I don't object to that, most of what a minister says or does
during the ceremony shouldn't matter, because a US legal situation
shouldn't be contingent on religious acts.
"I now pronounce you man and wife" shouldn't matter any more than if
after two people signed a contract for furniture or corn, the lawyers
present then said, "That's a deal".
Stuart A. Bronstein
> In fact, there was a trial court in Pennsylvania that had to
> rule on this. During the ceremony, the parties exchanged vows,
> the minister began to pray, and the groom began to lose
> consciousness. The minister immediately pronounced the couple
> married, and the groom died within seconds.
>
> The bride then initiated (intestate) probate, and the groom's
> family objected. The court ruled that because marriage in
> Pennsylvania was a contract, it was completed when the parties
> exchanged vows.
>
> Unfortunately, the case wasn't appealed, so its listing in the
> Pennsylvania District & County reports probably doesn't have
> much bearing elsewhere. It was, however, identified in my
> Trusts & Estates casebook.
Seems to me that should be the ruling in any case other than one
where one of the parties was already married and never divorced. In
other cases a marriage is normally not void but voidable. And if one
of the parties doesn't take steps to terminate it, it is binding on
the heirs.
Gary
wrote:
>On Fri, 06 Nov 2009 15:01:50 -0500, Cy Pres <c.p...@yahoo.com> wrote:
>
>>> Does failure have sexual intercourse, IN ITSELF, provide a basis
>>>for dissolving a marriage ?
>>
>>It may provide grounds for dissolving a marriage, but a marriage is
>>not void for not having been consummated.
>
>My state (MN) is a statute-marriage state which recognizes, but does
>not allow, common law marriage.
>
>The relevant portion of our marriage statutes state:
>
>"518.02 VOIDABLE MARRIAGES
>
>A marriage shall be declared a nullity under the following
>circumstances:
>(a) ...
>(b) A party lacks the physical capacity to consummate the marriage by
>sexual intercourse and the other party at the time the marriage was
>solemnized did not know of the incapacity;"
If they had not had intercourse, but had engaged in oral sex, I
wonder if that would been considered "consummation" ? ie, would any
sexual activity do ?
Seth
Daniel R.Reitman <drei...@spiritone.com> wrote:
>In fact, there was a trial court in Pennsylvania that had to rule on
>this. During the ceremony, the parties exchanged vows, the minister
>began to pray, and the groom began to lose consciousness. The
>minister immediately pronounced the couple married, and the groom died
>within seconds.
Medically, that might be the case. But what is the legal status? How
is the legal time of death determined? (Presumably, it required at
least minutes for a doctor to either arrive or give up hope after CPR,
etc.)
Seth
Barry Gold
>> I note that the statute does not actually *require* fraud, though. It
>> appears only to require, in addition to lack of consummation due to
>> physical inability, a mere lack of knowledge. *Neither* party need
>> have known of the inability. I suppose such a situation could arise
>> completely inadvertently.
Mike <prab...@shamrocksgf.com> wrote:
>I'm having a difficult time trying to imagine how one party could be the
>one with the inability and not know it (or at least how it could be the
>groom with the inability.) But what about the very rare case of they get
>married and then the groom trips and falls onto the knife being used to
>cut the cake and......well, it hurts to even think about it but I'm sure
>folks get the idea. I.e. both parties were "willing and able" at the
>time of the contract being made but then one is unable to AFTER the fact
>(and this can be generalized into any contract where circumstances
>change after signing the contract but before full-filling it.) Doesn't
>contract law usually allow for "anullment" (or rescinding) of the
>contract in cases like that? But yeah, I realize marriage is a special
>case of contract law.
Generally, no, although there are exceptions. If I contract to sell
you 10 tons of rice, and two minutes after we sign the contract my
warehouse burns down (with all my rice in it), I still have to fulfill
that contract.
oTOH, if the contract is truly incapable of fulfillment, it may become
void because of a change in circumstances after the contract is created.
For example, I contract to sell you a painting (of no particular
value, you jst like it). If my house catches fire and the painting is
burned up, I will owe you only its market value (likely less than the
cost of the materials that went into it). But "specific performance",
which would otherwise be ordered by the courts, is no longer possible.
Nor will the courts order me to create another painting just like the
first.
I knew one man who _was_ sexually incapable. He married, his wife got
an annulment when she found out. He married again, and that wife
settled for a divorce. He found a third woman, but this time he
disclosed his problem and the two of them agreed to a celibate
marriage. AFAIK they remained happily married until he died of cancer
(from smoking).
Note however that certain marriages are _automatically_ void. In those
cases, a court decree of annulment simply memorializes that fact for
the public record. But it is impossible for the partners to waive
their right to an annulment, because the marriage is void _ab initio_
(from the start). A few cases that come to mind:
. The parties are related more closely than state law allows (e.g.,
a brother and sister "marriage" is simply void and can never be
legal even if both parties want it to be.)
. One party is already married to somebody else (bigamy)
. One party (or both) is too young to get married.
. "Marriage" was performed without a license (except in states that
allow "common law marriage").
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Steve Bartman
>If they had not had intercourse, but had engaged in oral sex, I
>wonder if that would been considered "consummation" ? ie, would any
>sexual activity do ?
I'd bet that the case law would say no. Consummation would need to
involve bilateral activities which make babies possible. (And yes, I
can hypo some that don't involve penetration, but again, I think the
case law is not going to help much there.) I don't think any of the
other various activities commonly practiced by teens in back seats
which may or may not result in seminal emission would do.
This part of the statute has pretty deep historic roots.
Steve
Dan Lanciani
| If I order a magazine subscription, a contract
| exists from the time they get the check,
Is this different from the typical consumer transaction where the
advertisement by the merchant is a solicitation for offers, the
consumer's attempt to pay is an offer, and the merchant must do
something to signify its acceptance before a contract exists?
| even if it's a month or two until I see the first
| issue and even though they could, in principle,
| decide in the meantime not to publish the magazine
| any more and return everybodys' money.
What then was the substance of the contract that existed from the
time they got the check? You agree to pay and they agree to either
supply a magazine or refund your payment at their option?
Dan Lanciani
ddl@danlan.*com
Steve Bartman
>Though the state gives ministers the power to fill out the form saying
>a man and woman have been married and the county clerk accepts his
>word, and I don't object to that, most of what a minister says or does
>during the ceremony shouldn't matter, because a US legal situation
>shouldn't be contingent on religious acts.
>
>"I now pronounce you man and wife" shouldn't matter any more than if
>after two people signed a contract for furniture or corn, the lawyers
>present then said, "That's a deal".
My state's statute doesn't even require the solemning official to
utter a word.
517.09 SOLEMNIZATION.
No particular form is required to solemnize a marriage, except: the
parties shall declare in the presence of a person authorized to
solemnize marriages and two attending witnesses that they take each
other as husband and wife; or the marriage shall be solemnized in a
manner provided by section 517.18.
The solemnizer then has to perform the paperwork portions of his
duties, but I'd say that the parties were legally married at the point
they declare the above one-liners. (I imagine a written statement
would work if one party was unable to speak due to injury or other, so
long as the witnesses see that person write out the statement.)
Steve
Mike Jacobs
> In article <3o6kf55ig41n7ream670lvveli3mbqk...@4ax.com>
> Daniel R.Reitman <dreit...@spiritone.com> wrote:
> >In fact, there was a trial court in Pennsylvania that had to rule on
> >this. During the ceremony, the parties exchanged vows, the minister
> >began to pray, and the groom began to lose consciousness. The
> >minister immediately pronounced the couple married, and the groom died
> >within seconds.
>
> Medically, that might be the case. But what is the legal status?
I'm a latecomer to this thread, but just want to pitch in that, in MD,
the marriage is "official" in the eyes of the State as soon as the
previously-issued marriage certificate (a/k/a "marriage license") is
properly signed by the couple and 2 witnesses plus an officiant
authorized by the State to perform marriages. So, none of this would
have become an issue if the couple had signed their marriage
certificate during the calm period right _before_ the public ceremony
began (as is almost _always_ done in MD). The couple and the
requisite 2 witnesses - a role typically filled by the Best Man and
Maid of Honor - are usually herded into a side room by the officiant
to perform that crucial step first, because as soon as the ceremony is
over and the recessional music starts, the officiant basically _knows_
he is never going to be able to round up all the necessary foax for
even the brief couple of minutes it would take to get them to hold
still long enough to sign - the bride, groom, and witnesses will be
running off to the reception, or wherever.
Other states may rule that a marriage becomes official and binding at
some _different_ point in the process, so, YMMV.
> How
> is the legal time of death determined?
That, too, depends on state law so YMMV. But in Mr. Reitman's
example, if it had happened in MD, the groom did not even _begin_ to
die until well into the public ceremony, so, as long as the
certificate had been signed beforehand, the couple were already
"married" in the eyes of the State before the bride even walked down
the aisle.
OTOH, if they had _not_ done that step before the public exchange of
vows, I'm guessing the vow exchange, without more, would _not_ be
enough to make them married in MD in the eyes of the law (even though
it may be enough for whatever their religion says is required) before
the groom finally died. I'm sure no one was going to be pushing a
marriage certificate in front of the dying groom and saying, "Here,
sign this quick!" as he was gasping for his last breath.
> (Presumably, it required at
> least minutes for a doctor to either arrive or give up hope after CPR,
> etc.)
The official "time of death" is whatever the coroner says it is, based
on all the factors that state law says are relevant to that
determination, whether it be brain death (cessation of alpha wave
function), cardiovascular death (stopping of heartbeat), pulmonary
death (stopping of breathing) or something else. One may also note
that none of those are exactly specific, since people have been known
to so-calledly "come back from the dead" after ceasing any one (or
more) of those life functions for a brief period of time.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Mike
> If they had not had intercourse, but had engaged in oral sex, I
> wonder if that would been considered "consummation" ? ie, would any
> sexual activity do ?
It all depends on what "is" is;)
In all seriousness, the statute does use the phrase "sexual intercourse"
and that usually is defined as "penile insertion into the vagina." So my
non-lawyerly guess would be "no, it wouldn't count."
Mike
Without getting graphic, a male should at least know if he can even
achieve the needed state (with a female, there might be internal issues
that prevent it that she might not have known about.) But yeah, I guess
it could happen (even a meteorite strike does have a chance of
happening.) But I'm still wondering about the case of where something
happened AFTER the actual marriage but before consummation that
prevented consummation. Could either party get it annulled in a case
like that? If I contracted to sell you a house and the house burned down
before you could actually take possession of it, you might be able to
get the contract voided. Or if I contracted with you to build you a
house and then had my legs amputated in a car wreck, I might be able to
get the contract voided (of course, in both cases, with money already
paid, if any, being returned.) But what about a marriage?
Gary
wrote:
>On Thu, 12 Nov 2009 09:44:20 -0500, Gary <n...@none.com> wrote:
OK, thanks. I read one earlier post that suggested the possibility
that a third party could invoke an annulment. That brings up an
interesting possibility.
(Let me say I doubt that normally anybody except the man and woman
involved know if the marriage has been consummated. Also, why
would anybody care ?)
Except -- Let me posit this outlandish thought.
First fact -- marriage must be consummated to be totally legal.
Second fact -- consummation is (by definition) sexual intercourse.
Third fact -- gay couples do not engage in sexual intercourse.
Question -- Hypothetically, could a gay couple -- legally married
in one state -- have their marriage annulled in another ? At the
request of a third party ? Let's say a state agency. If so, could
that annulment force even the state that wed them to recognize the
annulment ?
Seth
>oTOH, if the contract is truly incapable of fulfillment, it may become
>void because of a change in circumstances after the contract is created.
>For example, I contract to sell you a painting (of no particular
>value, you jst like it). If my house catches fire and the painting is
>burned up, I will owe you only its market value (likely less than the
>cost of the materials that went into it).
I'd say that you owe me the greater of market value or the price I
paid.
However, I'd expect that the market value, by definition, is the price
I paid (willing buyer, willing seller, neither under an obligation to
buy or sell).
Seth
Stuart A. Bronstein
> Seth wrote:
>>
>> A widower was 60 years old when his wife died. He was very
>> religious, and wouldn't even consider sex outside of marriage.
>> 10 years later, he remarries and then finds himself unable to
>> perform.
>
> Without getting graphic, a male should at least know if he can
> even achieve the needed state (with a female, there might be
> internal issues that prevent it that she might not have known
> about.)
Reminds me of the joke about a guy who gets a prescription for
Viagra from his doctor. He pops one and rushes home. When he gets
there he calls the doctor. "My wife's not home. I don't want to
waste it - what do I do?"
"How about the maid?"
"I don't need Viagra with the maid."
The bottom line is that is it possible to now realize that you
can't "perform" until the moment at hand. So it's not unreasonable
to allow annulment of marriage for failure to perform.
David Chesler
> Without getting graphic, a male should at least know if he can even
> achieve the needed state
The phrase "I don't understand, it's never happened to me before"
comes to mind.
Yet another silly scenario: After the solemnization but before
consummation the groom engages in sexual intercourse with a third
party. Is he committing adultery? (Suppose the bride doesn't learn
about it until after the marriage has in fact been consummated, so an
annulment on the basis of never-consummated isn't possible; suppose
it's someplace [are there any?] where adultery is still a cause for an
at-fault marriage, if not criminal.)
Steve Bartman
>OK, thanks. I read one earlier post that suggested the possibility
>that a third party could invoke an annulment.
I did not see that post. I can't think of a case where that would
happen. A purported "marriage" between minors is void, and doesn't
need an annulment. (Annulments normally involve voidable marriages.)
It might need a court order verifying the void status in some states.
Ditto a purported marriage where one or both parties were without
mental capability to enter into a contract.
That brings up an
>interesting possibility.
>
>(Let me say I doubt that normally anybody except the man and woman
>involved know if the marriage has been consummated. Also, why
>would anybody care ?)
Historically, the Church cared a great deal. That has no bearing on
modern civil contract, statutory marriage which most states possess.
>Except -- Let me posit this outlandish thought.
>
>First fact -- marriage must be consummated to be totally legal.
This is not a fact. In most (all?) states there is no need for
consummation for a marriage to be legal. All of the discussion here
has centered around deception, or non-informing, of the lack of
ability to engage in sexual intercourse. Presence of such a lack only
makes the marriage, in some states, voidable. If the unknowing party,
once informed of the other's incapacity, is fine with it, the marriage
proceeds. I believe my state has a statutory provision whereby the
possibility of petition for annulment on these grounds expires when
the incapacity is disclosed or learned of, and the capable party
accepts the fact and thenceforth holds themselves out as married, but
I don't have a cite.
>Second fact -- consummation is (by definition) sexual intercourse.
I don't know if its defined, but I suspect there is case law to that
effect.
>Third fact -- gay couples do not engage in sexual intercourse.
>
>Question -- Hypothetically, could a gay couple -- legally married
>in one state -- have their marriage annulled in another ?
I don't know. Many states, mine included, specifically do not
recognize same-sex marriages, so that suit wouldn't be accepted by a
Minnesota court. If there are states which don't allow same-sex
marriages, but do recognize them, I'd say they would hear a suit for
dissolution, but not annulment. Why would that court accept venue
shopping to enforce another state's laws?
A better question--if the third "fact" you present above (which I
don't necessarily accept as fact) is true, why wouldn't that couple
petition for annulment in the state where they were married. Why go
next door? If the argument is good, it's good, and they avoid the
entire question of state #2 not recognizing same-sex marriage or not.
At the
>request of a third party ? Let's say a state agency.
Where is the standing?
If so, could
>that annulment force even the state that wed them to recognize the
>annulment ?
I'm not sure what you mean here.
I am not an attorney and this is not legal advice.
Steve
Cy Pres
>Except -- Let me posit this outlandish thought.
I think the term "hypothetical" would more accurately describe the
situation.
>First fact -- marriage must be consummated to be totally legal.
This is, of course, a hypothetical, unless you can think of a
jurisdiction where this is actually the case.
>Second fact -- consummation is (by definition) sexual intercourse.
I'm not certain this is always the case, either. In some religious
definitions of marriage, the mere fact that a man and woman were alone
over the course of a night creates the presumption that the marriage
was consummated. I believe that in most states, consummation would
presumptively be sexual intercourse.
>Third fact -- gay couples do not engage in sexual intercourse.
That would depend on the legal definition of "sexual intercourse" used
in the state. If that included sexual activity other than straight
penile-vaginal intercourse, that is not necessarily the case.
Additionally, the real issue is that the partners are of the same sex.
The inquiry generally does not go beyond that in states where same-sex
marriage is prohibited. Heterosexual, bisexual, transsexual, and
other preferences are equally prohibited from marrying someone of the
same sex, and gays and lesbians equally permitted to marry someone of
the opposite sex. In fact, this is one of the stock responses to the
argument that prohibiting same-sex marriage violates the equal
protection clause, even if it echoes the very concept rejected in
Loving v. Virginia with regard to interracial couples, i.e. that the
Virginia law in question equally prohibited black and white people
from marrying outside their race.
Further, you have the issue of transsexuals or other people of
ambiguous sex, for natural or artificial reasons. In a state where a
male-to-female transsexual is still treated as male, may she then
marry a female? If she may not, then who may she marry? Nobody? If
you let her marry a man, though, it is "same-sex marriage." That
would be clearly discriminatory, to say that there are people who
aren't allowed to marry anyone, ever, because of a physical condition,
which might even be entirely natural, such as a person who is
genetically male but who developed in the womb as a female.
>Question -- Hypothetically, could a gay couple -- legally married
>in one state -- have their marriage annulled in another ? At the
>request of a third party ? Let's say a state agency. If so, could
>that annulment force even the state that wed them to recognize the
>annulment ?
I'm not sure how your fact set adds up to this question, which doesn't
depend on consummation per se, but in most states where the marriage
of same-sex couples is prohibited, the issue is that two people of the
same sex are per se prohibited from marrying each other, regardless of
whether the marriage is consummated.
The simple answer, though, is no. A same-sex couple married in
Massachusetts does not have their married status flip on and off as
they fly over various states on their way to California. If another
state refuses to recognize their marriage, for whatever purpose, they
remain married in Massachusetts. The issue would present interesting
choice of law questions if the marriage were annulled for other
reasons, for example, for reasons that would justify annulling a
marriage in Massachusetts. Generally, though, nullification is not
the way to dissolve a marriage. It is usually divorce. A divorce in
one state is generally recognized in another state, with some curious
exceptions. For example, I forget the cite, but there was a case
where a person was told by their spouse that a quickie divorce in, I
think, Nevada, was legally effective in their home state. That
person, deceived as to the legal effect of the divorce, went back to
their home state and remarried, and later was prosecuted and convicted
of bigamy. An appeals court refused to reverse the conviction.
Additionally, while some states have passed legislation or
constitutional amendments essentially stating that there is to be no
recognition whatsoever of same-sex marriages. Due to passing nonsense
legislation like this that does not even consider potential
consequences of such a policy, they are then put in difficult
situations when forced to deal with situations like child custody
disputes, splitting up property, insurance policies, etc. Their
dilemma in a divorce situation is that there is already a working
system for splitting up property in marriages. However, if they used
that system, they would be recognizing the marriage in some way. But
if they refuse to use that system, you then have hundreds of causes of
action as the couple then is forced to argue about who actually owns
every item in a a household. Does the state let an incredibly stupid
situation like that waste mammoth amounts of judicial resources? Thus
it is that many states which do not officially recognize same-sex
marriage nevertheless recognize same-sex divorce.
Generally, though, a state could not effectively reach into another
state and nullify marriages performed there.
Gordon Burditt
>in one state -- have their marriage annulled in another ? At the
>request of a third party ? Let's say a state agency. If so, could
>that annulment force even the state that wed them to recognize the
>annulment ?
I do recall that there was a case similar to this in Texas. A gay
couple, married in another state, then moved to Texas, wanted a
divorce. I don't know if it was contested, or on what grounds, but
I don't think this was an attempted annulment. Since Texas doesn't
have gay marriage, they said NO. Apparently state officials aren't
interested in undoing all the gay marriages originating in other
states even when they have a chance to do so in one specific case.
Daniel R.Reitman
wrote:
In many modern criminal statutes, "sexual intercourse" is define as
_any_ vaginal penetration. That, however, is unlikely to be adopted
as the definition in the marital context in any jurisdiction that
defines consummation as necessary.
Not that I believe, without definitive research, that any such
jurisdiction exists in the United States.
Cy Pres
Burditt) wrote:
>I do recall that there was a case similar to this in Texas. A gay
>couple, married in another state, then moved to Texas, wanted a
>divorce. I don't know if it was contested, or on what grounds, but
>I don't think this was an attempted annulment. Since Texas doesn't
>have gay marriage, they said NO. Apparently state officials aren't
>interested in undoing all the gay marriages originating in other
>states even when they have a chance to do so in one specific case.
Actually, a Texas court recently recognized gay marriage to the extent
of allowing a gay divorce. The Attorney General of the state is
appealing the decision.
Cy Pres
<che...@post.harvard.edu> wrote:
>On Nov 13, 7:36�am, Mike <prabb...@shamrocksgf.com> wrote:
>> Without getting graphic, a male should at least know if he can even
>> achieve the needed state
> The phrase "I don't understand, it's never happened to me before"
>comes to mind.
> Yet another silly scenario: After the solemnization but before
>consummation the groom engages in sexual intercourse with a third
>party.
Then there's grounds for divorce. In virtually every jurisdiction,
statutory marriage has replaced common law marriage, and in most of
those, common law marriage simply no longer exists. Under most of
these regimes, any two eligible people (of the proper age and in the
majority of jurisdictions of the opposite sex and not related too
closely) who take the legal steps necessary to marry are married
instantly, with whatever other solemnization the parties choose purely
optional. Consummation is not required.
Adultery, however, is almost always going to be grounds for divorce,
although it is not necessary in a no-fault divorce jurisdiction.
Don
>
> In all seriousness, the statute does use the phrase "sexual intercourse"
> and that usually is defined as "penile insertion into the vagina." So my
> non-lawyerly guess would be "no, it wouldn't count."
I would guess that more than 50% of all people marrying today in the
USA have had sexual intercourse long before the marriage ceremony and
many even before the decision to marry. Failure of consummation soon
after the ceremony, therefore, could be explained by the pressures and
stress of the ceremoney itself. Or possibly one or both paties drank
too much champagne and passed out before getting to the motel. At any
rate it seems to be a flimsy basis for legal decisions.